Sometimes 'Equal' Means 'Different'

New York City should go the legal distance in defending single-sex
public education

The debate over single-sex education is heating up again. The office
for civil rights of the U.S. Department of Education has informally
notified New York City Schools Chancellor Rudy F. Crew that an
all-girls leadership academy, opened last year in East Harlem, appears
to violate Title IX, the federal statute that bars sex discrimination
in federally funded education programs. Federal officials have
suggested that a possible solution might be to admit boys to the school
or to open a "comparable" all-boys school at a nearby location. The
chancellor has publicly rejected both proposals, threatening to take
the case to federal court if necessary. However this stalemate is
resolved, the resolution will reverberate far beyond the borders of New
York.

When the Women's Leadership School opened last year, it revived
interest in a concept that had languished for several years in the
aftermath of litigation brought by civil liberties and women's groups
against all-male Afrocentric academies for at-risk students in Detroit.
The determination shown by officials and sponsors of the East Harlem
school and the enthusiasm voiced by the young women and their parents
appear to have re-energized the movement and extended it outside the
inner city. This year, half a dozen California school districts are
establishing "single gender" separate academies for boys and girls,
including boys' schools in order to comply with a recent California law
and, arguably, to insulate the plan from legal attack. ("Calif. Opens Single-Sex Academies,"
Sept. 10, 1997.) Fueling the debate is the U.S. Supreme Court's
decision last year declaring the all-male Virginia Military Institute
unconstitutional.

Yet despite all the saber rattling by opponents of the concept,
single-sex education has solid grounding in the law and in research
findings. Title IX itself implicitly excludes the admissions policies
of elementary and secondary schools, other than vocational schools. The
New York City case, however, hinges on the interpretation of a
provision in the Title IX regulations requiring that public school
systems provide "comparable" courses, services, and facilities to any
student excluded from a school on the basis of sex. But the regulations
do not require that such courses, services, and facilities be provided
in the same school or even in a nearby separate single-sex school. In
other words, a single-sex school for girls does not trigger a legal
obligation to open a comparable single-sex school for boys provided
similar opportunities are offered, even in a coed setting. The New York
board of education maintains that the East Harlem school district
already provides numerous "comparable" opportunities for boys within
several coed schools throughout the district.

Most graduates of single-sex high schools confirm the value of
separate education.

Not only do the civil rights groups give the "comparability"
requirement a strained reading, but they completely overlook a key
provision within the Title IX regulations permitting schools to take
"affirmative action" to "overcome the effects of conditions which have
resulted in limited participation by persons of a particular sex."
Those conditions and the effects of single-sex schools in overcoming
them are now well documented in research findings.

Studies sponsored by the American Association of University Women
confirm not only the gender gap in self-esteem as girls advance from
elementary to middle and high school, but also the sexually hostile
school environment in which many young women struggle to assert
themselves academically and to survive emotionally. According to the
results of a 1990 survey of 3,000 boys and girls between the ages of 9
and 15, only 29 percent of girls, compared with 46 percent of boys,
retain the high self-esteem in high school that they exhibited in
elementary school. Girls further demonstrate a dramatic drop in their
interest in math and science during those years. Of even more immediate
concern, a 1993 AAUW report reveals that 31 percent of the girls
surveyed had been targeted "often" for sexual harassment. Such a
threatening learning environment clearly impedes the ability of young
women to focus on academics.

Opponents such as the National Organization for Women argue that
single-sex schools do not prepare young women for the real world, nor
do they permit girls or boys to transcend historically gender-based
barriers in society and in the world of work. Yet research findings and
anecdotal evidence point in the opposite direction. Most graduates of
single-sex high schools, including myself, confirm the value of
separate education. Researchers have found that young women in
single-sex secondary schools demonstrate higher educational and
professional aspirations, greater self-confidence, and less traditional
views of women in the workplace. They tend to take math and science
courses on higher levels, and outscore their coed counterparts on
general academic and science exams. These gains continue even when they
choose coed colleges. Not only do they attend more selective
institutions, but they are more likely to obtain advanced degrees and
choose nontraditional careers. Most importantly, single-sex education
has proven particularly beneficial to minority girls who, in one recent
study, scored nearly a year ahead of their peers in public coed
schools.

While the New York case now centers on the potential findings of a
violation under Title IX, opponents of single-sex schools have also
raised constitutional claims under the 14th Amendment's
equal-protection clause, making the analogy to the "separate is
inherently unequal" doctrine of the high court's Brown v.
Board of Education decision and raising the specter of the
court's more recent decision in the VMI case. These claims may
resurface in subsequent litigation even if the Title IX issue is
resolved administratively. Yet single-sex schools give evidence of
neither racial nor gender discrimination in a legal sense.

Despite all the saber rattling by opponents of the concept,
single-sex education has solid grounding in the law and in research
findings.

Any comparison between racially separate, academically inferior
schools, mandated by law in a 1950s society that was pervasively
segregated, and a voluntary single-sex program, particularly an
academically rigorous one, obviously is flawed. Clearly, the stigma or
"badge of inferiority" that the court found in Brown bears no
relevance to an approach intended to enhance and not deny educational
opportunities. The gender-based claim is equally questionable. The
court in its VMI decision left open the door to single-sex schools
under certain conditions, stating that government may draw distinctions
based on gender as long as they are supported by an "exceedingly
persuasive" justification. Research findings on the educational burdens
that weigh upon girls in coed schools along with the benefits derived
from single-sex schooling provide a convincing argument in meeting that
standard.

When we strip away all the rhetoric of "benevolent sexism" and
"separate is unequal" and focus on the educational issues, we find a
confusing inconsistency in oppositionist arguments. Rather than redress
a legal wrong, their position effectively turns the equality ideal on
its head. Over the past three decades, that ideal has come to mean not
just "same is equal" but sometimes "different is equal" and even "more
is equal" when applied to various student populations, including the
economically and educationally disadvantaged, linguistic minorities,
and the disabled. Why should gender be any different? Single-sex
education, particularly for minority girls, is merely an extension of
that very concept that these same civil rights groups have pressed
before courts, legislatures, and administrative agencies.

I am not suggesting that separate schooling should be mandated or
that it is even appropriate for all girls, or that some boys could not
benefit from a similar approach. What I am suggesting is that the case
for girls, particularly in the socially and emotionally sensitive
adolescent years, proves legally and educationally compelling. In fact,
an argument can be made that coed schools better serve many boys,
placing them in an environment where they learn to relate to girls as
equals. On the other hand, one has to seriously question whether
government should mandate, as some opponents argue, that all public
school students attend a coed school. Viewed in the context of the
larger debate over school reform, single-sex education is another issue
where principles of individual liberty (in the form of choice) and
equality (in the form of equal educational opportunity) are clearly
reconcilable and mutually reinforcing despite misguided assertions to
the contrary, assertions grounded more in ideology than in sound
pedagogy.

It would be appropriate for New York to seriously consider a similar
voluntary opportunity for boys, as a matter of policy and after
thoughtful planning and research on the particular target population.
But for the OCR to mandate, as a matter of law, that an all-boys school
be established as a condition for continuing the all-girls school in
question is a case of federal-intervention overkill. Such a mandate
distorts the letter and spirit of Title IX, completely overlooks
well-documented differences in the educational and social experiences
of girls and boys, misunderstands the nature and significance of
experimental programs, and impedes school officials from addressing the
needs of disadvantaged students for whom the prevailing system has
proven such a dismal failure.

The federal government, in fact, should encourage school districts
around the country to become similar "laboratories" for small-scale,
diverse, and measured experimentation from which can emerge the most
effective approaches to educating different populations of girls and
boys, both separately and together.

Unlike other school districts that have retreated from single-sex
schooling in the face of real or threatened litigation, New York City
should take the lead, go the legal distance, and lift the cloud
hovering over single-sex public education nationwide.

Rosemary C. Salomone is a professor of law at St. John's University in
New York City and the author of Equal Education Under Law.

Vol. 17, Issue 06, Pages 32, 44

Published in Print: October 8, 1997, as Sometimes 'Equal' Means 'Different'

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